< Civil Liberties Since 9/11


Friday, September 09, 2011


From WNYC in New York, this is On the Media. I'm Bob Garfield.


And I'm Brooke Gladstone. This program changed a lot after 9/11. Before, we spent a lot of time on cultural issues. After, our focus shifted to freedom of expression and information, privacy and the First Amendment. And that’s where we’ll begin this anniversary show.

Civil liberties, those freedoms I just mentioned, are conditions that enable good  journalism. And they were threatened by our own government after the attacks, as they always are, when national security is at risk.


University of Chicago Law Professor Geoff Stone is the author of Perilous Times:  Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. We asked him to assess the nation's record on civil liberties in the decade following the attacks, and he says it wasn't quite as bad as we may have feared.


Nobody was prosecuted for criticizing the government or the war. There were no mass arrests or detentions of American citizens, we were a bit fast and loose, I think, with aliens from some countries who we saw as potential threats. And that was a mistake. But, unlike World War II, where we incarcerated almost 100,000 American citizens of Japanese descent, nobody was talking about incarcerating American Muslims.

One of the things that George Bush did was recognizing, for example, that he could not suppress critics, was to be very aggressive about preventing people from learning what the government was doing, because you can’t criticize what you don't know. And that's very dangerous for democracy.

For the government to be secretly engaging in a range of activities that would be criticized by members of the American electorate, is a denial of self governance. And the Bush Administration did that at every turn.


But the Bush Administration was not the end of the story.


So Obama came in, and I think the one dramatic thing he did with respect to secrecy was significantly change the guidelines for classification.

After 9/11, Attorney General Ashcroft changed the rules about classification to bring within the web of classified material a much broader set of information than had previously been the case.

One of the steps that President Obama took,  for which he deserves great credit, was to essentially reverse those changes and to go back to the pre-existing set of standards.


On the other hand, though, there’s the  invocation of the State Secrets Act that has stymied a good number of court cases.


Yes, the State Secrets doctrine essentially allows the government, when they're sued, to challenge the constitutionality of some policy, for the government to say, we cannot be required to defend the constitutionality of the policy because for us to do so would require us to reveal classified information. Therefore, the litigation has to be dismissed.

And the Obama administration has, in fact, invoked that the State Secrets privilege is often, if not more often, than any administration in history.

There are two other elements to the secrecy issue where I think the Obama administration has done just as poorly. A second has to do with whistle blowing. There is a serious need for expanded protection of government employees who leak information, where that information shows government wrongdoing, ineptitude, substantial waste, and the like.

Right now government employees can be jailed if they release information which is important for the public to know. And President Obama supported expanded whistle blower protection before he became president. But since he's been President, he has taken a – a much more cautious position on that.

And the third example has to do with the issue of the journalist source privilege. Forty-nine states and the District of Columbia have a privilege that allows journalists to decline to reveal their confidential sources. There is no federal journalist source privilege. That legislation continues to linger.


In poll after poll, Americans have demonstrated that they are willing to trade a certain amount of their civil liberties for security. And yet, with each public revelation of excess by the government, there has been a political backlash. Waterboarding remains controversial, but the practice stopped.

The TIPS program was announced, the backlash was swift and fatal to that program. Is it that the principal civil freedom is just in our DNA as Americans?


I'd like to think it was in our DNA as Americans, but OI think that’s a little overstated. Too often it's the case that Americans are more interested in their own liberty than the liberty of someone else.

But I do think, on balance, that there has been an increasing awareness and sensitivity along those lines. The Supreme Court, in a series of very often divided decisions, in the first seven years after 9/11, did put clear limits on what the administration can do.

And despite all of the to-ing and fro-ing over particular Supreme Court decisions and, and the like, the Supreme Court does have considerable credibility with the American public.


All that said, that fretting that you and I have both been engaged in over the last decade, were we worried for nothing?


Absolutely not. The fretting, the pushing back, all of that helps define where the fight will be. And in the realm of say the post 9/11 world, you want to be fighting over whether there are habeas corpus rights for individuals in Guantanamo, rather than whether the government can intern American citizens who are Muslims.

One won’t always win on every issue but what the issue is, is the most critical question. On that score, I think that the Bush Administration was forced to fight out the legality of its actions in a place that was, in the grand scheme of things, relatively modest, whereas Franklin Roosevelt didn't have to fight about anything he did, until he got to Japanese internment. And even then it wasn’t much pushback.

So I think that the nation behaved extremely well in fulfilling its responsibilities, both the citizens and media and political officials, in pushing back early on, so as to prevent us from getting to a place where real tragedies would have occurred.


All right, Geoff, an education, as always.


My pleasure, thank you very much.


Geoffrey Stone is a professor at the University Of Chicago Law School and author of Speaking Out! Reflections on Law, Liberty and Justice.